WA Supreme Court delivers explicit message on privacy: compensation awarded to Facebook post victim

A woman who was the subject of sexually explicit social media posts by her ex-boyfriend has been awarded almost $50,000 in damages, in a further development of the protection of privacy in Australia.

The facts

In the recent case of Wilson v Ferguson, the plaintiff claimed that her former partner had breached an equitable duty of confidence by posting sexually explicit photographs and videos of her on the internet.

The couple had sent each other explicit photographs over the course of their relationship.  The defendant also took naked photographs of the plaintiff with her consent.  On one occasion, the defendant accessed the plaintiff's phone without her permission and emailed himself videos of the plaintiff engaging in sexual activity.

Following the break-down of the relationship, the defendant posted 16 explicit photographs and two videos of the plaintiff on his Facebook page, along with offensive comments.  The images were accessible to hundreds of the defendant's 'Facebook friends' - many of whom also knew the plaintiff - before they were removed several hours later.

Judgment

The Supreme Court of Western Australia found that the defendant had breached an equitable duty of confidence owed to the plaintiff.  The elements for succeeding in an action for breach of confidence are:

• the information in question was of a confidential nature (i.e., not widely known);
• the information was communicated or obtained in circumstances importing an obligation of confidence; and
• the information was used or disclosed without authorisation.

The Court found that where a person shares intimate photographs in the context of a relationship, it is ordinarily on the implied condition that the photographs are to be kept confidential.  In this case, the plaintiff's expectation that the material be kept private was confirmed in her conversations with the defendant.  The Court also found that by accessing sexually explicit videos from the plaintiff's phone without her knowledge, the defendant was placed under a duty to keep those videos confidential.  The Court was satisfied that posting the material on Facebook was a clear misuse of the confidential information.

A new avenue of redress for victims?

While there are numerous criminal offences which involve breaches of privacy (such as stalking, the use of surveillance devices and the interception of telecommunications), the common law action for breach of privacy remains relatively undeveloped in Australia.   As recently reported by the Australian Law Reform Commission, this means there are limited avenues of redress for persons who have suffered from serious intrusions on their privacy.

Plaintiffs have occasionally brought actions for breach of confidence, where the usual remedy is an injunction to prevent the publication, or further publication, of the confidential information.  Equitable damages have traditionally been awarded for economic loss, but not for distress that falls short of a psychiatric injury.  Accordingly, this cause of action has not been seen as useful for plaintiffs who suffer embarrassment, but no financial harm.

Importantly, in Wilson v Ferguson, the Court not only granted an injunction preventing the defendant from republishing the explicit images of the plaintiff, but also awarded equitable damages of $35,000 to the plaintiff as compensation for the distress caused by the dissemination of the images.  The Court expressly relied upon the 2008 Victorian Court of Appeal decision of Giller v Procopets  in determining that such damages were available.  The defendant was ordered to pay a further $13,404 in equitable damages for economic loss, to cover the plaintiff's time off work following the incident.

As such, this case represents a potentially significant precedent on the award of equitable damages for emotional distress for the misuse of personal information.  If the decision is followed, bringing a legal action for breach of confidence may become a far more attractive avenue of redress for people who have suffered from serious invasions of their privacy where there was an obligation of confidentiality.

A cautionary tale of the use of technology…

One of the Court's key reasons for expanding the award of equitable damages was the recognition that the law needs to keep pace with the use of technology on modern society. As Justice Mitchell remarked, it is not uncommon for people in relationships to use mobile phones to share intimate communications, and the internet is an easily accessible platform to disseminate those communications with the world.  Although the explicit images in this case were removed from the defendant's Facebook page just hours after being posted, the damage had already been done.  The award of almost $50,000 damages against the defendant comes as a timely reminder that comments and postings made online in the spur-of the-moment can have far-reaching 'real world' consequences.

For information on privacy law and related criminal offences, please contact:

Louise Jarrett
Acting Managing Principal Solicitor
louise.jarret@vgso.vic.gov.au 

Amy Galeotti
Solicitor
amy.galeotti@vgso.vic.gov.au

Operation Fitzroy - learnings for integrity in procurement practices

Between September 2013 and October 2014, IBAC conducted an extensive investigation into alleged serious corrupt conduct by employees of a government department and statutory authority.

The investigation, dubbed 'Operation Fitzroy', involved 15 current and former public officials and government contractors being called to evidence during a series of public examinations conducted in the County Court of Victoria in mid-2014. These were the first such examinations conducted by IBAC since its establishment in 2012.

The IBAC report identifies a need for the Victorian public sector to learn from the findings of Operation Fitzroy and to strengthen measures to ensure integrity in public procurement.

As another year begins, it is timely for government agencies and departments to reflect on the findings of the IBAC report and consider whether their own existing procurement practices are adequate to safeguard against corruption.

Lessons from Operation Fitzroy

Public sector organisations are entrusted with a significant responsibility for public expenditure. With this comes an obligation to have robust measures in place to ensure integrity in procurement practices.

Solid organisational processes, and a good organisational culture, are cornerstones of good procurement practice.

The IBAC report identified a number of factors as contributing to corruption risks. Ensuring that departments and agencies have robust practices in the following areas will help protect against corrupt conduct and ensure integrity in procurement practices.

1. Contract management. Good contract management practices are essential to managing corruption risks. It is good practice, for example, to continue to monitor projects once a tender process is finished and a contract awarded. Adequate performance monitoring, which continues beyond a tender process, may assist in detecting corrupt practices. Controls over sub-contracting arrangements are also important.
2. Supplier due diligence. Due diligence must be conducted on suppliers who are awarded contracts. This enables departments to investigate any connections between individuals within the department, and companies that are being awarded contracts. There should be controls to ensure that suppliers have the necessary skills, qualifications, financial viability and experience to deliver the required goods and services. This will help ensure that value for money is achieved in government procurement practices.
3. Training and expertise. Government employees with procurement responsibilities must have appropriate training, experience and adequate technical knowledge about the goods or services being procured. There should be ongoing processes for employees and contractors to raise concerns about procurement misconduct and corruption. There should also be ongoing education and training for all relevant employees regarding procurement policies and procedures, as well as associated corruption risks, and mechanisms to engage with suppliers regarding procurement policies and procedures, probity obligations, standards and requirements.
4. Management of conflicts of interest. Departments must ensure that there are appropriate processes in place to manage conflicts of interest. This could include, for example, a register of interests in which department employees regularly record any relevant interests, training for identifying when conflicts of interests occur, and processes for referring contentious or difficult conflict of interest issues to management.
5. Management of procurement staff. Managers of procurement officers must be appropriately trained in managing conflicts of interest and other corruption risks, and have appropriate managerial expertise. This will ensure that procurement staff are adequately supervised, and that staff activities are monitored and checked. It will also mean that red flags, which may indicate that improper or corrupt practices are occurring, are identified and acted upon sooner, rather than later. There must also be accountability of those at management level.
6. Recruitment of management staff. There should be processes for screening prospective employees in potentially high-risk positions relating to finance and procurement, and re-screening regularly for appointed employees.
7. Timeframes for delivery of projects. Tight timeframes and a culture of expediency may create corruption risks related to procurement planning, compliance and scrutiny of decisions. Regarding procurement policies as subservient to delivering significant programs of work as quickly as possible may lead to non-compliant or improper behaviour. The tension between meeting project delivery requirements and complying with procurement policies and processes must be monitored and managed appropriately.

The VGSO has a long-standing practice in public sector integrity, government procurement and public sector governance. We can assist you to ensure that your department or agency is protected against corruption risks, and conducts its procurement activities appropriately. With extensive expertise in public sector integrity processes, we can also provide advice and assistance with respect to department and agency responses to inquiries by bodies such as IBAC.

 For queries relating to any of the issues identified in this blog, please contact:

Julie Freeman
Assistant Victorian Government Solicitor
9947 1404
julie.freeman@vgso.vic.gov.au

Alison O'Brien
Assistant Victorian Government Solicitor
8684 0416
alison.o'brien@vgso.vic.gov.au

Sophia Angelis
Solicitor
sophia.angelis@vgso.vic.gov.au

Handy resources for procurement

• Current Victorian Government Purchasing Board procurement policy framework 
• Victorian Public Sector Commission Good Practice Checklist -Supporting Integrity in Procurement

Changes to the operation of the VCAT Planning & Environment List are imminent!

What is the issue?

At the end of 2014, the Victorian Civil and Administrative Tribunal  announced changes proposed to be implemented to its Planning and Environment List from
2 February 2015 which will affect the way this List operates for all applicants, respondents and responsible authorities.

What does it mean for me?

All clients with exposure to the jurisdiction of VCAT, including as proponents, objectors, referral authorities and responsible authorities will be impacted by these changes which we consider will streamline this List to follow a similar mode of operation to the Major Cases List, a subset of the Planning and Environment List.

VCAT advised of the following four key changes in a recent media release.

1. Initiating orders will be sent out for all matters in the Planning and Environment List.  These orders will specify hearing dates and any compulsory conference or mediation dates.  This changes from the current position where parties are not advised of a hearing date until later in the process.
2. Alternative dispute resolution using the expert services of the mediators at VCAT will be further encouraged by notification of the date for attendance at a compulsory conference or mediation at the outset of proceedings.  The current position relies on solicitors advising their clients of the method and process of mediation at VCAT in order to attempt to resolve the dispute by mutually acceptable terms for all parties.
3. Email is proposed to be the 'preferred method' of communication with parties and their advisors, rather than posting orders and hearing dates out in hard copy by ordinary post.
4. New application forms will facilitate the early provision of required documentation and additional details. This includes a copy of the planning permit application, plans and supporting material lodged by the applicant for permit,  detail regarding objectors and whether a cultural heritage management plan has been prepared.

These changes are reflective of the new Major Cases List process, whereby applicants are provided with standard initiating directions setting out all relevant hearing dates together with a timetable for other procedural steps.  In our experience, this new method significantly expedites the hearing and determination of a matters, and if possible the early resolution of a dispute without jeopardising the allocated hearing date. 

These changes will predominantly affect applications for review of the decision to grant (or not to grant) a permit, failure to decide appeals and applications for review of conditions of permit.  Enforcement matters will instead be referred to an initial practice day hearing.

What are the next steps?

Until 2 February 2015, VCAT advise that the old methods and procedures will be applied to applications for review.  At that time, finer details regarding the new procedures will be clarified.  Parties should seek legal advice regarding the impact of the announcement on any future matters proposed to be filed in VCAT. The following staff can assist you:

Eliza Bergin

Principal Solicitor

eliza.bergin@vgso.vic.gov.au

Juliette Halliday

Acting Managing Principal Solicitor

juliette.halliday@vgso.vic.gov.au

Unlicensed to chill - why an esky was deemed a motor vehicle

A man was recently fined almost $1,500 for apparently operating an unregistered vehicle, without a licence.

So, why did that become a story, in The Age, the Herald Sun and the ABC?
Answer: the vehicle was an esky, and the man was riding it along a footpath.

But there is no need to panic - it is still possible to safely and lawfully transport cold beverages, whether by esky, 'chilly bin', or other preferred type of beverage conveyance.

Under the Road Safety Act 1986, it is an offence to use an unregistered motor vehicle on a highway (s 7) and to drive a motor vehicle on a highway (s 18) (unless there is an applicable exemption).  Conventional use of an esky will not contravene either provision, but as this recent news shows, the Road Safety Act can apply more broadly than the public might expect.

First, a footpath can be a highway under the Road Safety Act. A highway includes both 'roads' and 'road related areas'. A footpath or nature strip, which is adjacent to a road, is a road related area (as is, for example, an area that is open to the public and is designated for use by cyclists or animals).

Secondly, any vehicle with a motor may be a motor vehicle, should it be used on a road or road related area. A motor vehicle is any 'vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle'.  So even if  you attach a motor to your esky, it will still only be a motor vehicle if it is used, or intended to be used, on a highway. That needs to be considered in relation to each particular vehicle or esky (rather than motorised eskies as a class). While it is doubtful that any motorised esky is intended to be used on a highway, it will generally be sufficient if it is actually used on one.

There are also exemptions which could be useful for prospective operators of motorised eskies (and like vehicles) to know about. For example, if one walks with one's motorised esky, rather than rides it, and it has a maximum speed of less than 7 km/h, it would be exempt by an order that has been made under s 3(2) of Road Safety Act. The same order also exempts certain scooters and bicycles. Motorised wheelchairs are exempt under the Act itself.

This case is (hopefully) somewhat unusual. That said, public authorities often have other issues arising under the Road Safety Act (such as in relation to land under their control), or under the Road Management Act 2004, Transport Integration Act 2010, or about roads generally, with which we can assist.

For such road related queries, please contact:

Mark Egan
Principal Solicitor
mark.egan@vgso.vic.gov.au

Anthony Leggiero
Acting Managing Principal Solicitor
anthony.leggiero@vgso.vic.gov.au

Running short on time? Seven key principles which guide decisions on planning permit extensions

There are seven key principles that guide Departmental responses to a request for an extension of time of a planning permit.  As outlined below, the Victorian Civil and Administrative Tribunal has recently applied these principles in Hotel Windsor Holdings Pty Ltd  v  Minister for Planning (Red Dot) [2014] VCAT 993.  The proponent of the redevelopment of the Hotel Windsor was refused a planning permit extension beyond 10 January 2015.  The permit allows part demolition of the existing hotel and construction of a new 26 storey tower and north wing extension.  If construction is not commenced by 10 January 2015, the developer will have to apply for another permit in circumstances where there have been changes to height controls in the Scheme.  This issue may arise for you or your agency if there has been, or will be, a significant change in planning policy.

The Tribunal in Hotel Windsor considered an application to review the failure by the Minister for Planning to grant an extension of time.  The Minister opposed the extension and submitted that the Tribunal should refuse the Hotel's application for a range of reasons.  One reason was that there had been a change in the planning policy since the permit was last extended.  The recent change to the planning controls specifically targeting the Bourke Hill precinct and the need to protect its low scale have resulted in the introduction of a mandatory height limit of 23 metres (well below the 93 metre development allowed by the permit).  This weighed against a decision to extend the permit and shifted the balance of planning considerations in favour of protection of Bourke Hill as a low scale precinct.

The Tribunal considered and applied the long-standing principles in Kantor v Murrindindi Shire Council (1997) 18 AATR 285 (Kantor principles).  The Tribunal noted that the implications for redevelopment of the Hotel Windsor were significant.  The Kantor principles are:

• whether there has been a change in planning policy;
• whether the landowner is seeking to warehouse the permit;
• intervening circumstances which bear on the grant or refusal of the extension requests;
• the total elapsed time;
• whether the time limit originally imposed was adequate;
• the economic burden imposed on the landowner by the permit; and
• the probability of a permit issuing should a fresh application be made.

The Kantor principles, while not definitive or exclusive, have been applied by the Tribunal consistently including recently in the case of Naroghid Wind Farm Pty Ltd v Minister for Planning [2012] VCAT 1203 (Naroghid).  In Naroghid, the change in planning policy was the introduction of the 2 kilometre rule.  This new rule requires wind farm proponents to obtain written consent from landowners within a 2 kilometre radius of a proposed turbine.  In Hotel Windsor, the change in planning policy specifically targeted the Bourke Hill precinct and the need to protect its low scale.  Balanced against the countervailing Kantor principles including no evidence of warehousing, intervening circumstances, the adequacy of the time limit and the implications of not granting an extension, the Deputy President found that the request for an extension of time to commence construction of the redevelopment of Windsor Hotel should be refused.

This decision and the Kantor principles may be relevant to you or your agency.  If there has been a change in planning policy, such that a permit may not be granted if it was applied for afresh, then potential requests from developers for extension of the time for the commencement of works are to be expected.  Accordingly, the seven Kantor principles are relevant considerations for agencies preparing  new or amended planning policies.

If you are in the Victorian Government and would like more information about this area of law, please contact:

Eliza Bergin
Principal Solicitor
T: 8684 0267
eliza.bergin@vgso.vic.gov.au

Juliette Halliday
Acting Managing Principal Solicitor
T: 8684 0299

juliette.halliday@vgso.vic.gov.au 

A duty to prevent a person from harming others? The latest from the High Court

On 12 November 2014 the High Court handed down judgment in Hunter and New England Local Health District v McKenna, unanimously allowing an appeal against an award of damages arising out of the deliberate killing of a man by his severely psychiatrically disturbed friend. While the Court's judgment only directly concerns the liability in tort of medical practitioners who exercise statutory functions relating to the involuntary hospitalisation of psychiatric patients, it is likely to have significant implications for statutory bodies charged with the exercise of public functions.

The Facts

Early in the morning of 20 July 2004, Mr Stephen Rose became concerned about the mental state of his friend Mr Phillip Pettigrove, who suffered from schizophrenia. Mr Rose took Mr Pettigrove to Manning Base Hospital in Taree. Upon his arrival at the hospital, Mr Pettigrove was admitted as an involuntary patient under the former Mental Health Act 1990 (NSW).

During the afternoon of 20 July 2004, hospital staff examined Mr Pettigrove and discussed his condition with Mr Rose. It was determined that Mr Pettigrove would be discharged into the care of Mr Rose, who would take him by car to his mother's home in Echuca. On the morning of 21 July 2004, Mr Pettigrove and Mr Rose departed Taree for Echuca. That night, while in a delusional state, Mr Pettigrove strangled Mr Rose to death.

Mr Rose's mother and his two sisters alleged that they had sustained psychiatric injury as a result of Mr Rose's death and commenced proceedings for damages against the hospital authority. They alleged that hospital staff had been negligent in failing to order the continued involuntary treatment of Mr Pettigrove and that this negligence had been a cause of Mr Rose's death and of their subsequent psychiatric injuries. At trial, the plaintiffs were unsuccessful. However, they successfully appealed to the New South Wales Court of Appeal. The hospital authority then appealed to the High Court.

The NSW Act

Central to the case were the provisions of the NSW Act. Section 21 provided for the involuntary detention of a person in a hospital if a medical practitioner certified that he or she was mentally ill. However, the Act contained numerous safeguards to protect the rights of patients. In particular, it provided that a decision to involuntarily admit a patient was subject to multiple stages of internal review by specialist medical practitioners and that the involuntary admission of a patient pursuant to the order of a medical practitioner could not exceed three days' duration. Thus the Act manifested a strong bias against involuntary detention. This policy was reflected in the express terms of section 20 of the Act, which provided that involuntary admission was not to be ordered where a less restrictive treatment option was reasonably available.

Judgment

The High Court held that staff at the hospital owed no duty to take reasonable care in determining whether or not to order the continued involuntary treatment of Mr Pettigrove. The Court considered that this conclusion was mandated by the express terms of s 20 of the NSW Act and by other provisions which 'reinforced' the policy enunciated in s 20. The Court determined that to impose upon hospital staff a common law duty to take reasonable care in determining whether to order the continued involuntary treatment of Mr Pettigrove would be inconsistent with the strong presumption against involuntary treatment manifested in the Act.

Implications for Decision Makers

While the judgment of the Court directly concerns only the specific provisions of the (now repealed) NSW Act, it will be welcomed by parole boards, quarantine authorities and other decision makers whose powers require them to balance the interests of individuals against the interests of the wider community. The imposition of a duty to take reasonable care in the exercise of such powers has the potential to act as a potent incentive to a decision maker to make the decision that he or she considers least likely to result in an award of damages, rather than the one he or she considers to be correct or preferable. It thus may place a decision maker in an impossible situation in which the proper performance of a statutory function carries with it a risk of incurring liability in damages, while minimising the risk of liability entails neglecting the performance of a statutory duty. The judgment of the High Court contributes to a body of authority, which includes such cases as Sullivan v Moody, Regent Holdings v State of Victoria and X v State of South Australia, that holds that a duty of care will not be found to exist in such circumstances.

If you are in the Victorian Government and would like further guidance on decision-making, risk and liability, we can help.

Jonathan Bayly
t 8684 0223
jonathan.bayly@vgso.vic.gov.au

Show us the documents - a precursor to show us the money?

Settling claims prior to the issuing of court proceedings saves time and money, and complies with the State's model litigant obligation to pay legitimate claims without recourse to litigation.  But does the State have an obligation to provide a claimant with documents pertaining to the claim during pre-litigation settlement negotiations, or when a Generally Endorsed Writ (GE Writ) has been filed with the court?

Pre-litigation settlement negotiations

At its commencement, the Civil Procedure Act 2010 (the CPA) included 'Chapter 3 - Before a Civil Proceeding Commences'.  Chapter 3 contained pre-litigation requirements, including that each person involved in a civil dispute (defined as a dispute which may result in the commencement of a civil proceeding) must take reasonable steps:

•  to resolve the dispute by agreement; or
•  to clarify and narrow the issues in dispute in the event that civil proceedings were commenced. 

This included the exchange of documents critical to the resolution of the dispute.

However, Chapter 3 of the CPA was repealed in 2011 and there is now no obligation under the CPA for the State to provide documents to a claimant prior to a civil proceeding being commenced.

Filing of a GE Writ

Recently we have encountered matters where pre-litigation settlement negotiations have commenced, but claimants' solicitors have subsequently filed GE Writs with the court in order to protect their clients' rights in respect of time limit provisions under the Limitation of Actions Act 1958 (the LAA).  This effectively safeguards claimants from having to bring an application for an extension of time to commence a proceeding, if settlement negotiations ultimately prove unsuccessful. 

The claimants' solicitors have provided us with a copy of the GE Writs on an informal basis, rather than formally serving them on the State, on the basis that settlement negotiations would continue and that no action was required with respect to responding to the GE Writs. 

 What is a GE Writ?

Usually when a proceeding is commenced, a Writ and Statement of Claim (SOC), pleading the causes of action and particulars of the claim, is filed with the court and served on the State.  However, a plaintiff has the option of filing a GE Writ, which the Supreme Court (General Civil Procedure) Rules 2005 and the County Court Civil Procedure Rules 2008 (the Rules) define as a writ containing an indorsement of claim comprising 'a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding'. 

A GE Writ typically does not plead detailed particulars of the claim as in a SOC, and is generally followed by the filing and service of a SOC at a later stage.

Request for documents

Notwithstanding that in many circumstances the filing of a GE Writ was not intended to 'formally' commence proceedings, claimants' solicitors have requested that the State provide them with copies of documents pertaining to the claim in order to progress settlement negotiations.  Such requests have been made under the auspices of the CPA.

Section 26 of the CPA

Section 26 of the CPA provides that a person to whom the overarching obligations apply (being a party to a civil proceeding and their legal representatives) must disclose to each party the existence of all documents which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.  Such disclosure must occur at the earliest reasonable time after the person becomes aware of the existence of the document; or such other time as a court may direct.

Is the filing of a GE Writ the commencement of a civil proceeding for the purposes of s 26 of the CPA?

The CPA defines civil proceeding as 'any proceeding in a court other than a criminal proceeding or quasi criminal proceeding'.  'Court' is defined as the Supreme, County or Magistrates' Court.

The Rules define 'proceeding' as 'any matter in the Court commenced by writ or originating motion'.  The Rules further provide that 'a proceeding shall be commenced by filing the originating process' and that 'a writ shall be valid for service for one year after the day it is filed'. 

Accordingly, notwithstanding circumstances where a GE Writ has not been formally served on the State and that its filing was intended only to preserve a claimant's rights in respect of time limit provisions under the LAA, its filing constitutes the commencement of a proceeding and consequently s 26 of the CPA applies in respect of requests for documents. 

Are there any grounds to resist a request for documents?

As noted previously, a GE Writ must provide 'reasonable particularity' about the plaintiff's claim and causes of action.  If the Writ fails to provide satisfactory detail about the claim and does not accurately identify or particularise the causes of action with any precision, we consider that it is possible and reasonable to resist a request for documents under s 26 of the CPA on the grounds that the State:

•  has insufficient knowledge about what the 'dispute' is alleged to be; and
•  is unable to identify whether documents are 'critical to the resolution of the dispute'.

If you are in the Victorian Government and would like more information about this area of law, please contact:

David Ryan

Managing Principal Solicitor

t 8684 0417

david.ryan@vgso.vic.gov.au

Andrea Robinson

Senior Solicitor

t 8684 0232

andrea.robinson@vgso.vic.gov.au